Excerpt:civil procedure code (act v of 1908), sections 11, 92, order xli rules 1, 22 - scheme suit--scheme not framed-subsequent suit, whether barred--remedy--appeal, second--two decrees drawn up by lower appellate court--procedure--cross-objections. - - 772 has been (sic) un authority for that proportion, but it cannot appear clearly whether in (sic) case (sic) a (sic) petition. it is not necessary for us to decide the point, as i am clearly or opinion that there was no obstacle in the way of the plaintiff instituting in the way of the plaintiffs instituting the present suit. 8. i agree with my learned brother that this second appeal and the memorandum of objections both fail......to try suits under section 92, civil procedure code that was the proper court to entertain this scheme suit.5. whatever objections there might be to a court of inferior jurisdiction making alterations in a scheme framed under the decree of a superior court, no difficulty of that kind arises out of the facts of the present case.6. it is true that the plaint in original suit no. 39 of 1909 contained a prayer that the district court would set up a scheme for the manage pent of the trust, and when the issues and the decree and judgment of that court did not touch the question the appeal grounds contained an objection that no provision had been made for the succession to the trusteeship and that the scheme framed by the court below was incomplete and defective. but the high court's decree.....

Judgment:

Spencer, J.

1. The principal points argued in this second appeal are (1) that the suit was not maintainable so tar as it was a suit for a scheme of management of the trust properties after a sceme had been once settled in a (sic) suit which was carried to the High Court in appeal, (2) that in any case the Sub-Court had no jurisdiction to (sic) or alter in any way the scheme which had been embodied in a decree of the District Court and lastly (3) that if any change in the existing scheme was called for, the proper manner for (sic) it would be to move the District Court by petition and not to file a suit in the Subordinate Court. The appellant does not wish to press any objection to any particular details of the scheme bat only to the maintainability of the suit.

2. When a scheme drawn up by a Court contains a provision permitting parties or persons interested in the religious instruction to apply to the Court for directions and for modifications to be made in the scheme already existing, as was the case with the scheme that was the subject of the decision in Damodarbhat v. Bhogilal Karsondas 24 B. 45 I am of opinion that the proper remedy for detects discovered in the original scheme is to apply by petition to the Court that framed the scheme arid not to file a regular suit. Whether Courts have inherent powers to alter schemes without a fresh suit being brought for the purpose when there is no provision for alteration in the scheme is a question that is open to doubt. Sadupadaya Omeshanana Oja v. Ravaneswa Prosad Singh 43 Ind. Cas. 772 has been (sic) un authority for that proportion, but it cannot appear clearly whether in (sic) case (sic) a (sic) petition. It is not necessary for us to decide the point, as I am Clearly or opinion that there was no obstacle in the way of the plaintiff instituting in the way of the plaintiffs instituting the present suit.

3. The previous litigation regardirg the trust was in Original Suit No. 39 of 1909 on the (sic) of the District Court, Coimbatore. Neither the decree of the District Court nor the decree Of the High Court in appeal contains any provision for the parties applying to the court by petition in future.

4. Though a scheme once settled cm not be altered except by the Court. See Rama Das v. Hanumanha Row 12 Ind. Cas. 449 a suit will lie for the purpose when there is no express authority 101 an application being mace to the Court on petition in the matter of a waqf executed by Halman Khatoon 7 Ind. Cas. 33. As the Sub-Court of Coimbatore is now empowered to try suits under Section 92, Civil Procedure Code that was the proper Court to entertain this scheme suit.

5. Whatever objections there might be to a Court of inferior jurisdiction making alterations in a scheme framed under the decree of a superior Court, no difficulty of that kind arises out of the facts of the present case.

6. It is true that the plaint in Original Suit No. 39 of 1909 contained a prayer that the District Court would set up a scheme for the manage pent of the trust, and when the issues and the decree and judgment of that Court did not touch the question the appeal grounds contained an objection that no provision had been made for the succession to the trusteeship and that the scheme framed by the Court below was incomplete and defective. But the High Court's decree merely modified the District Court's decree by adding a declaration that nine shops described in the schedule belonged to the suit temple and otherwise confirmed the decree appealed against. The District Court's decree contained only personal directions that the defendant as trustee should maintain proper accounts and file them in Court once a year. The prayer that a scheme should be framed must be deemed to have been refused then in both Courts. The circumstances will not prevent a renewed attempt being made to have a scheme framed when the occasion arises at a later date. It is not suggested that Order II, Rule 2 of the Code of Civil Procedure is an obstacle to this suit. The defence that the present suit was not maintainable thus fails, and the only other point advanced before us that the lower Courts ought to have found that the shops formed a separate trust being unsustainable in view of the High Court's decision in Appeal Suit No. 113 of 1911, that they belonged to the temple and in the absence of any material for a finding that they had been separately dedicated, the second appeal is dismissed with costs of respondents Nos. 2 to 5.

7. There is a memorandum of objections to the decree of the District Court in Appeal Suit No. 175 of 1919 which confirmed the First Court's decree refusing to direct the removal of second defendant from the trusteeship. As there is no second appeal in that case, the respondents should have separately appealed and they have no right to file cross-objection under Order XLI, Rule 22, Civil Procedure Code. Respondents reply to this objection is that under Rule 105 of the Civil Rules of Practice the lower Appellate Court should have drawn up only one decree. When, however, there are in fact two decrees and the respondents wish to appeal against one only, it is for them to see that the course that they take to get that decree amended is the appropriate one provided by law. There are no merits in the memorandum of objections and it is therefore dismissed with costs.

Krishnan, J.

8. I agree with my learned brother that this second appeal and the memorandum of objections both fail. In the second appeal Mr. Rangachariar for the appellant contends that the suit, so far as it refers to a scheme of management of the suit temple, is really an attempt to modify a scheme already framed for it by the District Court in a former litigation between the same persons and is therefore to that extent not maintainable, the plaintiff's only remedy being an application to the Court for the purpose. The answer to this contention, however, is that there was no scheme framed by the Court in the former suit. It is true that a scheme was prayed for but as I read the judgments and the decrees of the District Court and of the High Court in appeal in that suit those Courts thought it sufficient to give a direction to the trustee by way of an injunction to keep correct accounts and file them in Court. That was purely a personal direction and cannot, in my view, be construed to be the framing of a scheme of management. The High Court in its judgment expressly stated that it was unnecessary to consider the succession to the trusteeship. If the Court were framing a scheme, that would have been a material point to settle, and the statement thus points to the fact that there was no intention to settle any scheme. I would, therefore, overrule Mr. Rangachariar's objection solely on that ground without expressing an opinion about the other points dealt with by my learned brother with reference to this contention.

9. There is no question of resjudicata and Section II. Civil Procedure Code cannot be applied as the present suit, so far as it prays for a scheme, is based on a different set of facts which came into existence at least partly after the previous suit had been filed and on a different sanction newly obtained from the Collector. No doubt the finding in the previous suit that the shop belonged to the temple and the declaration in the decree to that effect render that matter res judicata but the question whether a scheme should be framed on the fresh facts alleged is not concluded by the refusal to frame one in the former suit. The contention that the shops formed a separate trust from the temple and that the defendant as one of the founders of the special trust should be treated as its hereditary trustee must thus be rejected. Even if we could consider the merits of the contention, there is nothing to show that the shops were kept as a separate trust. No other points were argued m the second appeal and I agree that it should be dismissed with costs of respondents Nos. 2 to 5.

10. A preliminary objection was raised to our hearing the memorandum' of objections as it was pointed out that though there was only one suit and one decree in the First Court, there were two appeals, Appeal Suit Nos. 174 and 175 of 1919, in the Appellate Court filed by the second defendant and the plaintiffs respectively and that, though there was only one judgment in appeal, two independent decrees were drawn up by that Court in two appeals in spite of Rule 105 of the Civil Rules of Practice. The second appeal is against the decree in Appeal Suit No. 174 and the memo, though worded as in that second appeal in the cause title, really objects to what had been decided in the connected Appeal Suit No. 175. It is contended that it is not open to the respondents in the second appeal against Appeal Suit No. 174 to object to the decision in Appeal Suit No. 175 by way of memorandum of objections but that they should have filed an independent second appeal themselves if they wanted to do so. The respondents, answer on this objection is that in view of Rule 105 we must treat the two decrees as really parts of one and the same decree in which case, of course, the memorandum of objections will be competent and that in case we hold that that cannot be done, the memorandum of objections should be allowed to be amended into a second appeal against Appeal Suit No. 175 of 1919 and the delay excused. It is not necessary to consider how far the respondents contentions can be supported, for on the merits they have no case in their memorandum of objections. The only point argued is that in the scheme framed, a third party should have been associated with the second defendant as trustee as the latter is did and sickly, there is however ample provision in the scheme to apply to Court in case the second defendant fails to do his duty as trustee. I agree that the memorandum of objections should also be dismissed with costs.